Dear Ellie, The Maternity Leave Minefield

Dear Ellie,

I work for a small employer that is not covered by FMLA due to size. One of our employees is currently on maternity leave under our internal leave policy.

Leadership is considering eliminating her role for financial reasons. A recent performance and revenue analysis shows that her output is significantly lower than a comparable employee in the same role. The position could be consolidated, and the remaining employee could absorb the workload.

The timing is what concerns me. She is still on leave. Leadership is considering moving forward with termination before she returns, framing it as a business decision and believing it may give her additional time to find other employment.

We are an at-will employer and have documentation supporting the financial rationale. However, I am aware that pregnancy and related leave carry federal and state protections, and the optics and potential exposure here feel significant.

What legal or practical risks should I be thinking about in a situation like this? And how should HR approach timeline and documentation when business necessity intersects with protected leave?

Sincerely,

Concerned About Timing

Your HR spidey-sense is tingling, and I need you to listen to it. Right now, your leadership team is walking blindfolded toward a cliff, and it is your job to pull the alarm.

Let me address the phrase, “Leadership believes it may give her additional time to find other employment.” This is a rationalization. Leadership feels guilty about firing a new mother, so they are convincing themselves they are doing her a favor. They are not. You cannot pay for diapers or health insurance with “additional time.”

The “At-Will” Myth

As HR practitioners, we should all take the phrase “at-will employer” and banish it from our vocabulary. “At-will” may give us the right to do something, but it does not mean there are no repercussions. It means you can fire someone for a good reason, a bad reason, or no reason — but you cannot fire them for an illegal reason.

Even without FMLA, you are likely subject to the Pregnancy Discrimination Act (PDA) and the Pregnant Workers Fairness Act (PWFA) if you have 15 or more employees. If you have fewer than 15, almost every state has its own pregnancy protection laws that kick in at much lower employee thresholds (sometimes as low as one employee).

If you fire a woman while she is recovering from childbirth, the burden of proof will essentially fall on you to prove that her pregnancy, her leave, and her upcoming status as a working mother had zero percent to do with the decision — let me repeat that — zero percent.

The Playbook: Navigating the Intersection of Risk and Business

1. The Temporal Proximity Trap

In employment law, timing is everything. Firing someone while they are on protected medical or maternity leave is the reddest of red flags. A plaintiff’s attorney will argue that the leave itself was the catalyst for the termination. You will have to spend tens of thousands of dollars in legal fees just to prove it was a “financial consolidation.”

2. Audit the Performance Data Ruthlessly

You mentioned her output was lower than a peer’s. You must scrutinize this data like a defense attorney.

Did her output drop during her pregnancy? If she was slower because of pregnancy fatigue, morning sickness, or doctor’s appointments, and you use that data to fire her, you are penalizing her for being pregnant. That is a direct violation of the PDA.

Were the goals adjusted for her leave? If she is being compared to a peer who worked 12 months while she only worked nine, the data is discriminatory.

Were there any documented performance conversations leading up to or during her pregnancy? If not, you do not have proof that this was a trend or that she had an opportunity to improve.

3. The Culture Cost

Let’s say your documentation is flawless and you win the lawsuit. What happens to the rest of your team? Small companies run on trust. If the remaining employees watch leadership terminate a new mother while she is at home with an infant, trust is broken. The psychological safety of your entire team will evaporate overnight. They will realize, “If they do that to her, they will do it to me.”

The Only Way Forward: Counsel and Severance

This is not a DIY HR moment. You need to consult an employment attorney immediately before any action is taken.

If the business truly cannot survive without consolidating this role, you cannot simply fire her. You must offer a generous Severance Agreement tied to a Release of Claims. This means you pay her a lump sum (often equivalent to her remaining time off plus a few months) in exchange for her signing a legally binding agreement not to sue the company.

I would also suggest adding generous HIPAA reimbursement amounts, as she and her newborn will likely need that insurance coverage. This is the only way to “give her time” to find her next role in a way that honors her rights and protects your company.

And Now, a Word from HR… to HR

I know that it is incredibly difficult to push back on leadership when they are looking at spreadsheets and you are looking at humans. I also know that this probably feels pretty ick on the ethical spectrum for many in our position.

Your job right now is to translate human risk into business risk to find the best-case scenario for all. Do not just tell them, “This feels wrong.” Tell them:

“Terminating an employee on maternity leave carries the highest possible risk for a discrimination lawsuit, which averages $150,000+ to defend, not including settlement costs, which can range anywhere from $10,000 to $100,000 on average. Our performance data may not hold up in court if her pregnancy impacted her metrics. We must engage legal counsel to draft a severance package with a release of claims, or we risk bankrupting the company.”

Then compare those numbers to the staggering amount it would cost if they do the wrong thing.

Be the brave voice in the room. They are paying you to protect them from their own blind spots.

Stay resilient,

Ellie

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Elizabeth “Ellie” Tancreti is a seasoned HR consultant (and former Senior Recruiter, Onboarding/People and Culture Specialist) who’s faced the same challenges—and helps professionals like you get unstuck.

Bring your questions—on burnout, alignment, career pivots, leadership challenges, building culture, or any thorny questions keeping you up at night. Ask your question and get Ellie’s advice.

The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject.